Whose dog is it? Custody of pets is growing legal issue

Originally published January 18, 2010 at 7:05 pm

Updated January 15, 2010 at 7:01 pm

A look at the growing issue of pet custody in divorces and also other situations such as separation due to Hurricane Katrina. The documentary "Mine," opening Friday, Jan. 22, at SIFF Cinema in Seattle, tells the stories of people who found their pets in new homes, with rescuers or adopters who didn't want to give...

When Hurricane Katrina hit New Orleans and the levees broke, many who were forced to leave without their pets endured long searches to find animals that had been ferried to safety without them. You’d think that finding that their pets were alive and well after the storm would be pure joy, but for some, it was more complicated.

The documentary “Mine,” opening Friday at SIFF Cinema in Seattle, tells the stories of people who found their pets in new homes, with rescuers or adopters who didn’t want to give them back.

“A lot of the people that I met just didn’t know what they could do,” says filmmaker Geralyn Pezanoski. “Their animals were out of state, they didn’t have the resources.”

But a few, with the help of good Samaritans as well as lawyers, fought to get their dogs back — sometimes for years. One subject of the film, Jesse Pullins, was reunited with his dog J.J. only this past June, more than four years after the hurricane.

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Katrina may have been a one-time event, but it doesn’t take a natural disaster to set up a conflict over ownership of a beloved animal. It can happen to anyone who is part of a couple, as Doreen Houseman of Williamstown, New Jersey found.

After their relationship of over a dozen years ended, she and her ex managed to share their pug, Dexter, at first. Then one day, her ex said he wasn’t bringing Dexter back to her again. “It felt like someone told me my best friend died,” she says, and the next day, “I woke up hoping it was a nightmare, but it wasn’t.”

At first, a judge refused to hear a case for enforcing the sharing arrangement. Instead, he awarded monetary compensation for Dexter and for other property that had not been divided.

Splitting the value of a house or car makes sense to most of us, but a dog? While we feel very differently about our pets, they are property in the eyes of the law, says Joyce Tischler, founder and general counsel of the Animal Legal Defense Fund, which has filed briefs in many similar cases.

“Judges can decide these cases very simply by awarding the animal to the person who appears to be the owner,” she says. Factors considered include who pays the vet bills and walks the dog most of the time.

However, legal arguments can also be based on the existence of other laws that treat animals quite differently.

“Every state has an anti-cruelty law,” says Tischler. “There isn’t any anti-cruelty law for my rug or my toaster. The law recognizes that animals need special protection.”

Under current law, then, what a lawyer can argue is that animals are a special kind of unique and irreplaceable property, and in Houseman’s case, the New Jersey appellate court agreed. Such property, like an antique or a valuable painting, is treated differently under the law, so the case was sent back to the original judge for a new decision. He ordered shared possession of Dexter, five weeks at a time each.

Like the cases in Pezanoski’s film, Houseman’s fight was a long one, lasting two and a half years.

“What’s really interesting is how important pets are to people and how far people will go,” the filmmaker says, despite the fact that not everyone sympathizes. A lot of the resistance that her subjects encountered, says Pezanoski, was “people who asked, why don’t you just get another dog?”

In fact, Houseman did just that when a co-worker knew of a pug that was looking for a home around the time of the first trial. But, says Houseman, “Getting her was in no way to replace Dexter, it was to comfort me.” The two are completely different personalities, she says: “She’s a little firecracker. He’s very laid back.”

The law is slowly catching up to our feelings about the uniqueness of our pets, says Gina Calogero, Houseman’s lawyer. The New Jersey case continues a trend set by decisions in a handful of other states, and helps set precedent that can be used where courts have not yet considered the issue.

“I do think this was a good case,” says Adam Karp, who practices animal law in Bellingham.”You had a court saying, dogs are unique, face time with a dog can’t be cashed out.”

Such precedent is valuable because lawyers see these cases increasing.

“Ten years ago I would have been laughed out of the courtroom,” Calogero says. “Now in the last five years it’s accelerating, and it’s being taken seriously.”